Rosser v. Cheney

Bleckley, Justice.

1. The ruling made in 54 Ga., 168 , in a branch of this same litigation, must, if steadily kept in view and pursued to its consequences, control the result in favor of the beneficiaries of the homestead. According to that ruling, the-first purchaser and those claiming under him, stand charged in law with notice of the recitals in the deed from Eussell to Cheney and wife. That deed forms a link in the chain of their title, and this court has held that its recitals affect them, whether they examined it or not. They might and ought to have examined it, and are in the same situation as if they had examined it. Notice is not synonymous with knowledge, but has a much broader signification. If a person either knows a thing or is legally bound to inform himself of it, he has notice. The law is not indulgent to ignorance where diligence has been omitted. The verdict of the jury was contrary to the law as heretofore laid down by this court, in the application of that law to the facts in evidence, and the grant of a new trial was inevitable.

2. The curative provision in the constitution of 1877, in-relation to the sale of homesteads, cannot be extended to the present case, for the reason that that provision, as we construe it, was intended to operate only where the parties had pursued the statutory mode of conveying the property in question. That mode required the approval of the ordinary to be indorsed upon the deed. Code, §2025. Here there was no approval indorsed, and, so far as appears, the ordinary was not consulted in relation to the sale of this particular property. That he may have approved the sale of *470 the homestead proper, the proceeds of which sale were invested in this land, would not dispense with a like approval when the second sale was attempted. Doubtless, the constitution could be applied between the parties to the former sale, if the property which was the subject of that sale were to come in controversy.

Judgment affirmed.